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Hussain v Dass [1994] FJHC 95; Haa0007j.94b (18 August 1994)

IN THE HIGH COURT OF FIJI
APPELLATE JURISDICTION

CIVIL APPEAL NO. HAA0007J.94B

Between:

KASIM HUSSAIN
s/o Walli Mohammed
Appellant

and

RAM DASS
s/o Ramappa
Respondent

Mr. V. Ram Counsel for Appellant
Mr. M. Sadiq Counsel for Respondent

JUDGMENT

The background and circumstances which have given rise to this appeal by defendant/appellant from an order made in the Magistrate's Court at Labasa in favour of plaintiff/respondent are set out in the order of the learned magistrate as follows:

"ORDER

This is an application for setting aside a judgment that had been entered against the defendant on 16/12/1993.

The original writ had been issued on 12/10/1993 which came before Court on 10/11/93. It is re a claim for a sum of $3,100.00 being the balance due and owing by the defendant to the plaintiff regarding a Ford tractor.

Leaving aside all irrelevant details the main ground on which the defendant is asking for setting aside the judgment is that the plaintiff had, by an agreement and signed by him and dated 15/4/93, agreement to the payment of the balance sum of $3,025.00 with the repair costs deducted in 1996. A copy of this agreement as well as a translation of this document had been tendered to Court.

The plaintiff/respondent denies signing any such document and states that no such paper however been made. He further continues that the alleged document would have been written by the defendant/applicant and his signature forged.

The alleged agreement is dated 15/4/93. The claim was admitted in Court by the defendant/applicant on 10/11/93 and the defendant had been again present in Court on 8/12/93. Neither on 10/11/93 nor on 8/12/93 had the defendant mentioned about the alleged agreement to Court. If such agreement had existed then it is the most natural or obvious thing for the defendant to bring it to the notice of Court. if it had been misplaced or lest be somehow brought that fact at least to the notice of Court.

The plaintiff denies signing any such agreement and state that it is a forgery.

In the circumstances I do not see any warrant in this application and refused it."

The grounds of appeal are as follows:

"1. The Learned Magistrate erred in law and in fact in refusing to set aside the default Judgment in the fact of a document signed by the Plaintiff showing that the action taken by the Plaintiff was immature.

2. Alternatively that the Learned Magistrate ought to have varied the Judgment by placing, if he ruled that the same ought not to be set aside, a restriction on the execution of the judgment until the 1996.
   
3. The Learned Magistrate erred in law and in fact in holding that the document being an undertaking purportedly signed by the Plaintiff herein did not present a triable issue which required investigation and therefore the default judgment ought to have been set aside."
   

Counsel for plaintiff/respondent objected to the hearing of this appeal because it was not filed within the appeal period as provided by the Rules of Court, though Counsel for defendant/appellant claimed that he had given oral notice of the intention to appeal when the learned magistrate made his order refusing to set aside the default judgment. Unfortunately no note was endorsed on the court record to confirm the claim. I deferred my decision on the objection at the hearing of the appeal. I am now satisfied in the overall interest of justice after having considered the matter carefully that leave should be granted in the circumstances of this case. Leave to appeal out of time must therefore be granted to defendant/appellant.

The appeal is against the refusal by the learned Magistrate to set aside a default judgment entered against defendant/appellant who had failed to enter an appearance to the claim against him for $3,100 which was made in the writ of summons filed on behalf of plaintiff/respondent. This is in substance an appeal against the exercise of his discretion by the learned magistrate.

To succeed in this appeal the defendant/appellant must satisfy this court that the exercise by the learned Magistrate of his judicial discretion in refusing to set aside the default judgment was wrong in principle or as a matter of law.

The classic statement regarding the approach of an appellate court to the exercise of judicial discretion was given by Lord Atkin in Evans v. Bartlam [1937] AC 473 where at p.480 he stated:

"Appellate jurisdiction is always statutory; there is in the statute no restriction upon the jurisdiction of the court of appeal: and while the appellate court in the exercise of its appellate power is no doubt entirely justified in saying that normally it will not interfere with the exercise of the judge's discretion except on grounds of law, yet if it feels that on other grounds the decision will result in injustice being done it has both the power and the duty to remedy it".

Clearly therefore an appellate Court in reviewing the exercise of judicial discretion that is being impugned must always look at the reasons for the exercise of such discretion in that particular manner. If the reasons based on the material before the lower court were shown to be sound, an appellate court would not interfere with the exercise of the trial Court's discretion. The learned Magistrate's reason are contained in his Order quoted above for refusing to set aside the default judgment. For my part I find his reasoning quite unexceptionable and clearly this Court would not be justified in interfering with the discretionary decision of the learned Magistrate. The alleged defence put forward to show probable cause to justify an order for setting aside the default judgment in the case was based on a letter claimed to have been written by plaintiff/respondent which would have had the effect of compromising his action or claim against defendant/appellant. As the learned Magistrate held, the letter in question did not and could not have emanated from plaintiff/respondent as the circumstances surrounding it were deeply suspicious and questionable. It is no doubt a spurious document which is not worthy of any further attention by a court of law. I would go even further and say the defence such as it is, is an abuse of the process of the Court.

In the result I find no merit whatever in this appeal which is dismissed with costs.

Chief Justice

Suva
18 August, 1994

HAA0007J.94B